Monday, February 28, 2011

"Raecker’s bill is dead, ... but the issue Raecker’s bill raises remains alive. It can be put another way: Mural may be a 'national asset,' as Dove said, but how much of an educational asset is it? It gives the university, its art history department, and its museum a great deal of prestige ... but what can the students learn from it ...? Just what exactly does it contribute to their intellectual and emotional development? Would it be of greater benefit to them if it was sold and the money from the sale used to fund scholarships in perpetuity rather than whatever benefit they might gain by studying it -- and I don’t doubt there is an educational benefit? ... [W]hat lasting effect will it have on the students -- and I don’t doubt that it will have an effect ... ? Simply put, what good does it do hanging in all its glory in the university’s museum -- in any museum -- considering the good it could do if it was sold to endow a scholarship fund?"

Do you ever get the feeling that, outside a small circle of True Believers, no one's really buying the absolutist case against deaccessioning?

But speaking of the small group of True Believers, there is one bit of news in the Note (or at least it's news to me; I don't recall seeing this reported anywhere): it seems the NY Board of Regents ad hoc committee on deaccessioning has proposed an amendment to the current rules and -- big surprise! -- the idea is to maintain the status quo. They keep the basic AAMD principle -- sales proceeds can only be used to buy more art -- but now they propose to tell museums When It’s Okay to deaccession (even when the proceeds go to buy more art). There's a list of nine specific crieria -- the item is inconsistent with the mission of the institution, the item has failed to retain its identity, the museum can no longer properly care for it, etc. -- but one of them is "refinement of the collection" and that seems to me to be an exception big enough to drive a truck through. I think you can justify just about any case of deaccessioning by saying it’s to REFINE THE COLLECTION. So as a practical matter, I don’t know how much of a difference this proposed amendment to the rules would make. Which I suppose is how the museum directors want it.

Artnet's Walter Robinson reports that a German museum has been selling off some work, including a $13 million Richter, and does not plan to use the proceeds to buy more art.

What? That can't be right. Don't they know it's repulsive to sell art and not use the proceeds to buy more art? Do the Deaccession Police not have an office in Germany?

Look, this is a reminder that when people run around ranting and raving about the evils of deaccessioning, all they're really doing is enforcing a set of guidelines a private organization has adopted, for their own institutional reasons, and in their own self-interest. It's not some immutable moral principle. It's just the way one group of museum directors would like the world to be. Other museum groups have different views (in Germany apparently, as well as in the U.K.).

ARCA's Catherine Schofield Sezgin notes a story that was making the rounds yesterday of "a security guard from Corsica's Fine Arts Museum in the Palais Fesch [who] stole four paintings, submitted his ransom demand for housing through a local television station, and when he led police to his car, discovered that the window had been smashed and that the four paintings had been stolen from his car."

Tuesday, February 22, 2011

The LA Times has a little piece about the Getty's "new pride and joy," J.M.W. Turner's 1839 "Modern Rome -- Campo Vaccino." They're planning a big shindig in March "to celebrate the arrival and installation."

But here's a question: what about the people of Scotland?

Remember, "the painting long had resided on loan in the National Galleries of Scotland in Edinburgh." The Getty bid $44.9 million for the work at auction last year, but an export license was held up in an (ultimately fruitless) attempt to find a matching bid that would keep it in the U.K. The Scotland Herald's headline before the sale was: Scotland's loss as Turner set to be auctioned.

And indeed it is.

So why don't the deaccession police care about that loss?

I understand that, technically, the situations are not the same since the Turner was privately owned, but why am I, sitting here in New York, supposed to be all broken up if Bentonville, Arkansas takes a work away from Nashville, Tennessee, or Iowa City, Iowa, but ready to celebrate if Los Angeles takes a work away from Edinburgh? Is it a matter of pure nationalism?

Thursday, February 17, 2011

Citing "important new evidence," opponents of the Barnes move have filed a petition to reopen the case. What's the new evidence? Statements made in "a recent documentary movie entitled The Art of the Steal." I kid you not.

Statements made by the then-Attorney General in the documentary show that he "forfeited his neutrality" and was "an active participant," a "co-conspirator" in the move. Statements made by the then-Governor "are totally inaccurate": "it is now known" that $107 million in public monies "were being set aside by the former Governor of Pennsylvania to facilitate the transfer." The court "was grossly misled during these proceedings that the Barnes Foundation was fiscally unable to maintain its Lower Merion address when, in fact, the Governor had already set aside substantial funds of public monies to support the transfer of the collection to Philadelphia." The "same funds could have been used to maintain the Barnes Foundation at its current location." The court was thus "misled."

Really. That's the whole argument: "The major reason to reopen this matter is the fact that this Court was misled as to the role of the Attorney General and misled as tot eh availability of public funds" (typos in the original).

But here's the thing: the Friends of the Barnes petitioned to reopen the case once before, in 2007, relying explicitly on the hundred million dollar line item in the budget. There is nothing new about that issue. In 2008, Judge Ott dismissed the previous petition on standing grounds: he said "the Friends have no standing because they have no interest beyond that of the general public." "It is clear," he concluded, "that the Friends lack standing in this matter" (emphasis added).

Given that, it's incredible that the Friends would try again like this. Last time, Judge Ott decided not to grant the Foundation's request for attorney's fees. He said, "in this instance, we believe the petitioners filings were made in good faith, and the events that precipitated the filings (the state budget appropriations' coming to light and the County's offer to explore the purchase/lease-back arrangement) were of sufficient import that the attempt to reopen the issues was not arbitrary." As a result, "the petitioners' conduct did not meet the legal definition of 'vexatious.'"

It wouldn't surprise me at all if he finds that this time it does, and orders the Friends (and other petitioners) to pay the Foundation's legal fees defending the motion.

The petition is here. The Philadelphia Inquirer runs an AP story here.

Wednesday, February 16, 2011

The Seventh Circuit has issued its decision in the Chapman Kelley Wildflowers case. You can read it here. I won't have time to get to it until later, but in the meantime here is Sergio Muñoz Sarmiento, who says it's "not a good day for artists’ rights." For background on the dispute, start here.

UPDATE: Okay, I've read the decision. On the one hand, it certainly feels like a big blow to artists' rights ("not all conceptual art may be copyrighted"). But on the other hand, the actual holding may be quite narrow. But on the other other hand, there is language in the case, not essential to the holding, that is absolutely terrifying from an artists' rights perspective.

I think what the case holds, at bottom, is simply that gardens are not copyrightable:

"A living garden like Wildflower Works is neither 'authored' nor 'fixed' in the senses required for copyright. . . . Simply put, gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden . . . originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces .... Of course, a human 'author' . . . determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. . . . The essence of a garden is its vitality, not its fixedness. . . . [I]ts nature is one of dynamic change."

Having said that, the court immediately adds the following qualifiers:

"We are not suggesting that copyright attaches only to works that are static or fully permanent ... or that artists who incorporate natural or living elements in their work can never claim copyright."

And it expressly distinguishes Jeff Koons's "Puppy" from Kelley's work:

"In 'Puppy' the artist assembled a huge metal frame in the shape of a puppy and covered it with thousands of blooming flowers . . . . This may be sufficient fixation for copyright (we venture no opinion on the question), but Wildflower Works is quite different. It is quintessentially a garden; 'Puppy' is not. In short, Wildflower Works presents serious problems of authorship and fixation that these and other examples of conceptual or kinetic art do not" (emphases added).

So, again, the actual holding seems fairly limited (though certainly not helpful to artists). As I mentioned, however, there is some extremely scary language earlier in the decision. But before we get to that, let me briefly mention two (more positive) points:

1. In my initial posting on the case back in 2008, I said the district court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The Seventh Circuit says the same thing: the district court "misunderstands the originality requirement." I said: "Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it." The Court here says: "No one argues that Wildflower Works was copied; it plainly possesses more than a little creative spark."

2. Also in that initial posting, I noted that the district court had followed the First Circuit in Phillips v. Pembroke in finding that VARA does not protect site-specific art at all, and I said that "while a reasonable argument can be made that VARA doesn't prevent the removalof a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. ... Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things?" The Court here says, "though we need not decide [the] question," Phillips's "all-or-nothing approach to site-specific art may be unwarranted. . . . [S]ite-specific art -- like any other type of art -- can be defaced or damaged."

Now to the very scary part. Before getting to the specific holding in the case -- that works that are too garden-like are not eligible for copyright protection -- the Court first goes out of its way to point out that VARA applies only to "specific types of visual art." "[O]nly a select few categories of art" get VARA protection. Those categories are paintings, drawings, prints, sculptures, and photographs. And this does not include "sculptural works," three-dimensional works that are "'sculptural' in some aspect or effect." It has to actually be "a sculpture" -- "not metaphorically or by analogy, but really."

I say the Court went out of its way to make this point because the defendant in the case, the Chicago Park District, did not contest the district court's holding that the work is a sculpture. The Court calls it "an astonishing omission," and says:

"In short, this case raises serious questions about the meaning and application of VARA's definition of qualifying works of visual art -- questions with potentially decisive consequence for this and other moral rights claims. But the Park District has not challenged this aspect of the district court's decision, so we move directly to the question of copyrightability ...."

This is the part that, if followed by other courts, may well be, as Sergio puts it, "the kiss of death to conceptual art," as well as lots of other contemporary art-making that doesn't fit neatly into the "painting" or "sculpture" box. This just seems foolishly literalist to me (why would you exclude what a large percentage of our visual artists are doing from the orbit of the Visual Artists Rights Act?), but it's late, so let me stop here and pick it up again in the next few days.

Tuesday, February 15, 2011

Photographer David LaChapelle is suing pop star Rihanna, claiming the video for her latest video infringes his work. The NYT's Randy Kennedy has a report here. The Daily Mail runs some side-by-side comparisons, and it seems it's another case of idea vs. expression.

"The plaintiff was informed by an Amir Cohen that the painting was available and, interested in buying, 'requested Cohen to procure an appraisal.' Cohen recommended Guy Wildenstein, who then provided a written appraisal to Michel Reymondin, 'a non-party to this action whose relationship to plaintiff and the transaction at issue in not disclosed in the complaint.' Wildenstein appraised the painting at $15-17 million, allegedly without disclosing that his gallery once owned the painting. 'The complaint alleges that plaintiff received the Appraisal ..., but does not state how it obtained the Appraisal from Reymondin.' Plaintiff paid $11.3 million for the painting, which it then tried to sell at Christie's, but it failed to reach its $12 million reserve. The lawsuit followed, but the claims all failed because there was no relationship between plaintiff and Wildenstein -- the appraisal was obtained by the mystery middle man, Reymondin."

The Court of Appeals affirmed for largely the same reason, i.e. "the lack of allegations that would indicate a relationship between the parties, or at least an awareness by Wildenstein of Mandarin's existence."

At the intermediate appellate level, one judge thought the unjust enrichment claim should have survived because, on such a claim, "there is no requirement that the aggrieved party be in privity with the party enriched at his or her expense." But the Court of Appeals held that, although it is true that "privity is not required for an unjust enrichment claim," such a claim will nevertheless fail "if the connection between the parties is too attenuated."

Monday, February 14, 2011

Tyler Cowen says that states that are cutting back on arts funding are doing the right thing:

"If you're a libertarian, the choice is obvious. If you're a progressive, it is better to spend the money on Medicaid expansion or other more worthy goals. There really is an opportunity cost of this money[;] . . . we could use those funds to save some lives. Most of the benefit of arts subsidies goes to the relatively wealthy and well-educated."

You see this in the deaccessioning debate too. A lot of people want to pretend there are no opportunity costs involved. You can keep the art (or the arts funding) and the scholarship money and the 18 academic programsand the Medicaid expansion and all the other worthy goals. There are no conflicts, no hard choices to be made. The money for everything just magically appears. If you think otherwise, you're repulsive.

Relatedly, The New Republic's Jonathan Chait says "public arts subsidies are inherently problematic. It's problematic to force people to subsidize art that offends their religion or their values. It's also problematic to have the government vet art for messages that might be politically toxic."

And Matt Yglesias sees a "huge advantage" to our system of subsidizing the arts through charitable donations: "[The system] lets you hide the ball. You never hear people getting mad over the fact that tax-exempt contributions are going to fund controversial or offensive art. It’s a pretty good model, and yet nobody ever talks about it, in part because it works precisely through the mechanism of people not talking about it."

Friday, February 11, 2011

One way of looking at disputes like the one around the University of Iowa Pollock is as a clash of values.

On one side, you have the Art Lobby -- the people who think it's more important to keep the painting than to have $150 million in additional scholarship money.

On the other side, you have the Education Lobby -- the people who would rather have the scholarship money than the painting.

What the Art Lobby side wants to do, rather than defend, or argue for its position, is to appeal to some meta-principle -- Thou Shalt Not Sell Art -- that settles the debate. They never have to explain why it's better to keep the painting than have the additional scholarship money. They just point to their meta-principle and say, "see, it's unethical to do what you want to do. Case closed."

And then, to take it a step further, they appeal to groups like the AAMD and the AAM, who naturally oppose the sale, but that's because they are part of the Art Lobby side. The AAMD is not some neutral arbiter of the competing claims here. It's one of the claimants.

If you think it's better for the university to keep this painting than to have an additional $150 million in scholarship funds, that's fine. Explain why. Argue for it. Defend it. But appealing to the "authority" of the AAMD adds nothing to the debate.

Thursday, February 10, 2011

The idea of selling the University of Iowa's Pollock has come up again in the state legislature. The chairman of the House Appropriations Committee has introduced a bill calling for the sale, with the sales proceeds going "into an endowment that could provide $5 million a year for scholarships for resident students at the UI majoring in art." Any sale would have to provide that the work "must be on the UI campus for at least three months every four years ..., so students could still use it for educational purposes."

This issue has been raisedbefore, and nothing ever came of it. I suspect the same will be true this time, but, to me, one interesting aspect of the story is the involvement of the state legislature. That is, we're often told that the reason museums can't sell works is that they are held "in trust" for "the public." Presumably, the public in this case is the people of the State of Iowa. But what if that public's elected representatives vote (imagine, to make the case even stronger, unanimously) to sell the work? Or, imagine the matter is put to a direct vote by referendum, and "the public" votes overwhelmingly in favor of the sale? What then? Would it still be wrong to sell? I suppose the argument might be that the museum is protecting the interests of future generations of Iowans, who would be deprived of the opportunity to see the work (except for at least three months out of every four years), but what reason do we have to think future generations wouldn't have similar views to the current generation that just voted overwhelmingly to sell?

In any event, brace yourselves for the howls of outrageous outrage from the chorus of the perpetually outraged.

I mentioned a couple months ago that David Ascalon's VARA lawsuit seemed to have settled. That's now been confirmed. The Pittsburgh Tribune-Review has the story here.

Rosie Burbidge says "this case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose."

Sergio Muñoz Sarmiento offers "congrats to both parties for the amicable settlement!"

Tuesday, February 08, 2011

She says I "think the museum should deaccession some of its holdings so it can remain open," which I guess is fair enough, though I would amend that slightly to say that I have no idea how deep their troubles run, and whether deaccessioning could save them from closing, but . . . if it could, how could anyone be against it? Paddy mentions that the museum doesn't have any fundraising staff. What if the deaccessioning proceeds could be used to hire some excellent fundraisers? What if a large enough endowment could be established to keep the museum open, and an overwhelming majority of its collection intact? If that's the case, why not consider it?

The NYT's Randy Kennedy reports that LACMA and the Getty have "jointly acquired a huge collection of" Mapplethorpe prints, negatives, and letters. Sounds like a part-gift/part-sale, with the total collection valued at over $30 million. The two museums "will collaborate on exhibitions and publications using both the photographs and archives."

I've said this before, but if it's so wonderful for two museums to share a collection (and it is! it is!), then why are people so worked up about the Fisk-Crystal Bridges deal?

Presumably it would not be problematic for Fisk and Crystal Bridges to team up and acquire an important collection, just as the two museums are doing here.

Then why can't they enter into a sharing arrangement after-the-fact? We end up with two museums co-owning a body of work, just as they will here, plus, for those who can be bothered to care about such things, Fisk avoids having to shut its doors. What is repulsive about that?

I can't recommend highly enough this brief essay on deaccessioning in the Broad Streeet Review by Gresham Riley, the former president of the Pennsylvania Academy of the Fine Arts.

It's rhetorically very interesting, a little sneaky even.

He begins by paying homage to "the most important [deaccessioning] guideline," i.e., "the stipulation that the earnings realized from the sale of a work of art must be restricted to the acquisition of other art." "Nothing in the art museum world," he correctly observes, "possesses quite the sacred cow status as this particular guideline; to breach it is to become a pariah."

He says the "essential purpose" of the rule is that it "forces museum boards to distinguish between cultural and financial assets. Objects in the permanent collection must not be treated as simply one set of fungible properties among others."

So far, nothing remarkable. It seems like we're in for yet another lecture about preserving the collection for future generations and blah blah blah.

But then he quickly pivots, noting the "compelling fact" that "art museums are under enormous financial pressure, and how they finance their operations will increasingly call for creative thought." "Within this context," he says, "I believe a fresh look at deaccession is justified."

First of all, he argues, the current rules "fail to accomplish their intended purposes— namely, to protect the public interest and to encourage prospective donors to donate art works to museums. According to this theory, without firm deaccession guidelines, donors will lack confidence in the willingness of museums to keep what is given to them."

"But," he says, "the existing policy is in fact an exercise in smoke and mirrors, providing neither guarantees of public access nor commitments to maintain possession." On the one hand, "because of limited exhibition space, most museums’ collections are consigned to storage." In addition, the current rules "don’t prohibit a museum from selling ...; they merely limit the use of proceeds from the artwork that’s sold."

Wow. Just wow.

He continues: "Nor do the current guidelines place restrictions as to whom an artwork might be sold. There are no prohibitions against selling to private collectors .... Consequently, a museum can unilaterally remove a work of art from the public domain altogether .... So much for the public trust and the public interest."

Remember my Museum Directors Hall of Fame? Gresham Riley just got his own wing.He concludes by calling for "new, more flexible guidelines" which would allow sales proceeds to be used for "a number of object-related (and more importantly, budget-relieving) activities and staff positions." Like what?

Like: "pay[ing] the salary of a conservator and/or the expenses associated with a conservation laboratory."

Or: "the addition of education professionals to help interpret the collection to the public, or curators to help maintain the collection."

Eww! Stalinesque! Appalling! Horrible! I hereby call on the Deaccession Police to call on the AAMD to sanction Mr. Riley (and anyone he has ever associated with) at once.

The big finale:

"Current deaccession guidelines perpetuate a museum culture in which objects are ends in themselves, more important than their use to educate, to inspire, to stimulate, to empower—even more important than their care and preservation. ... Rethinking deaccession guidelines would not only reduce some of the smoke and mirrors associated with museum operations. It might also stimulate novel ideas about financing museums while legitimately expanding their basic mission."